Democratic AGs are using the courts to win on abortion, gun control

For Bob Ferguson, the Democratic attorney general of Washington state, the seventh time proved to be the charm.

For six years, Ferguson pushed a ban on assault-style weapons in Washington’s legislature. Each year, the proposal failed to make it out of committee - until this one. In April, the legislature passed the bill and Gov. Jay Inslee signed it into law.

Ferguson said the “tragic drumbeat” of mass shootings played a role in boosting public support for the measure. And the Democratic base has become younger and more liberal since he first proposed the ban, he said.

“The political aspect of it has been turned on its head,” Ferguson said. “The voters in Washington now want to ban assault weapons, they want to ban high-capacity magazines. That change definitely occurred.”

Ferguson is one of several Democratic attorneys general moving aggressively on key social policy issues to blunt Republican initiatives across the country designed to loosen gun restrictions, outlaw abortion and curtail the rights of transgender residents.

The Democratic effort, shaped by previous opposition to the Trump administration, is creating what amounts to a series of state sanctuaries for those threatened by Republican laws. It also reflects a sense among the Democratic state attorneys general that a divided Congress is too deadlocked to pass any significant social policy legislation or impose civil rights protections.

“During the Trump administration we saw a lot of attacks on rights, and we are now continuing that battle,” said Geoff Burgan, communications director for the Democratic Attorneys General Association. “But Congress is a dead end, and working together against red states is being done directly and proven much more effective.”

The Democratic effort has taken on fresh urgency from recent federal court rulings, most notably the Supreme Court’s decision last year to end the federal right to abortion, and laws enacted by Republican governors and state legislators that Democrats view as extreme.

Last week, North Dakota Republican Gov. Doug Burgum signed a bill that virtually outlaws abortion. Recently, Florida lawmakers passed legislation allowing concealed handguns to be carried without a specific permit to do so and a ban on abortion after six weeks of pregnancy. In Montana, the governor recently signed a bill banning transgender care for minors.

Much of the Democratic resistance is coming from the West, where some states have passed measures similar to those being considered now. California lawmakers, for example, have approved strict gun laws, and the voters last year also enshrined the right to abortion in the state constitution. But the Democratic attorneys general are coordinating in ways they have not done previously.

In recent years, the electorates in Western states have become more Democratic, making some of these moves that were once politically dangerous much more popular. Once deep-red states, such as Arizona, have turned purple.

That helped Kris Mayes last year narrowly win the attorney general’s race in Arizona, flipping it from Republican to Democrat.

Mayes’s predecessor, Mark Brnovich, who argued aggressively that Arizona should enforce a law dating to 1864 that outlawed abortion, did not run. She defeated Republican Abraham Hamadeh, who also supported the ban on abortion, by fewer than 300 votes.

Abortion played a central role in the race. Since winning, Mayes has set up Arizona’s first reproductive rights unit within the attorney general’s office.

“A big reason why I am sitting in this chair right now is because Republicans tried to undermine reproductive rights in this country,” Mayes said. “The stakes are high.”

Since taking office, she also has joined a multistate lawsuit demanding fewer FDA restrictions on access to the abortion pill mifepristone. Ferguson and Oregon Attorney General Ellen Rosenblum, also a Democrat, filed the suit. Earlier this month, Judge Thomas O. Rice ruled in the case, ordering the FDA to preserve “the status quo” and retain access to the medication in 17 states and the District of Columbia.

Hours before Rice released his decision, a Texas judge wrote a separate decision limiting how patients obtain the drug mifepristone and how late into pregnancy it can be used. The Supreme Court stayed that ruling, putting the matter on hold, and will hear arguments on access to the abortion drug later this term.

“This is an evenly divided state politically,” Mayes said. “But it is a state that values pragmatism. That was the message of the 2022 election.”

In Oregon, Rosenblum is addressing gun control, abortion guarantees and transgender rights, the three most pressing national social policy issues.

Now in her third term, Rosenblum is lobbying hard for a package of gun-control measures in the legislature that would ban “ghost guns,” firearms without serial numbers that are extremely difficult to trace, and raise the age limit for possessing a gun from 18 to 21 years old.

Oregon legislators are also debating a measure for next year’s ballot that would enshrine abortion rights, protect same-sex marriage and guarantee the range of gender-affirming care. Rosenblum supports the measure reaching the ballot, although she cannot take a public position on it before then.

“I do have concerns that we are infringing on rights based on sexual orientation and gender even in our state,” said Rosenblum, a former federal prosecutor and appellate judge. She noted that only seven of Oregon’s 36 counties have Democratic majorities.

“We may not be seeing these rights threatened to the extent they are in some other states,” Rosenblum said. “But Oregon is not as blue as it sometimes seems.”

A former co-chair of the Democratic Attorneys General Association, Rosenblum said the 24-member group has a weekly call to coordinate efforts on issues common to all of them, a practice that began after Trump’s election. The group often calls in experts to brief them, including recently on issues surrounding the abortion medication case.

“We thought that after four years of Trump we would have a chance to catch our breath,” Rosenblum said. “That did not turn out to be true, at all.”

Rosenblum has worked closely with Ferguson, who has emerged as a leading voice among these Democratic attorneys general. Now in his third term, he is having legislative successes that have eluded him in previous years.

Along with the assault weapons ban, Washington’s legislature also passed a prohibition on magazines that hold more than 10 bullets. By contrast, at least five Republican-run states this year have eliminated so-called safe zones, such as around schools, where it is prohibited to bring a gun.

Ferguson has also been a defender of transgender rights. Last year, he argued in the U.S. Court of Appeals for the 9th Circuit against a ban on “conversion therapy.” For years he has defended Washington’s roughly 16,000 transgender residents’ right to health care.

“The Democratic makeup of our legislature has changed,” said Ferguson, a fourth-generation Washingtonian. “They are more diverse, they are younger, and far less patient on waiting for change. They want it to happen now.”

His most consequential recent success, though, was his lawsuit that prevented, at least temporarily, a ban on mifepristone.

The idea for the suit came out of a team Ferguson set up in his office weeks before the Supreme Court nullified the federal right to abortion. The team’s job was to decide how best to respond to the ruling, and his staff recommended the lawsuit seeking even greater access to mifepristone as the way forward.

He agreed.

“It’s an extension of the work we did during the Trump administration,” said Ferguson, who sued the previous administration 99 times. “Those four years under Trump fortified the Democratic attorneys generals, and that’s why you are seeing successes now.”